Judge Kavanaugh will face contested confirmation hearing

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Russell Shaw weighs in on the Supreme Court nominee at the 6:36 mark of this episode of Catholic Herald podcast. Subscribe on Apple Music, Stitcher, Google Play Music or your favorite podcast app.

Soon Washington will again be offering the world the spectacle of
one of the things it does best (or worst): a contested Senate confirmation
hearing. This time it will be Judge Brett Kavanaugh’s turn to spend time on the
rack in preparation for serving on the Supreme Court.

Kavanaugh, a Catholic and a parishioner at Washington’s Blessed
Sacrament Church, has spent the last 12 years on the U.S. Court of Appeals for
the District of Columbia Circuit, frequently described as the nation’s second
most important court after the Supreme Court itself. There he earned a
reputation as an able, conservative jurist well qualified for the position for
which President Trump has nominated him.

But this is Washington, Trump named him, midterm elections are
approaching, and the Democrats are still smarting at the way Senate Republicans
dispatched Barack Obama’s last Supreme Court nominee, Merrick Garland, by
refusing even to hold hearings on his nomination. Kavanaugh will have to take
his lumps before taking his seat. Live with it.

Let us suppose, however, that he is confirmed. What then?
Conservatives are ecstatic at the prospect of a 5-4 Supreme Court majority.
They may get it, but they will not get all that some seem to imagine where
issues like abortion and same-sex marriage are concerned.

Take abortion. Social conservatives are itching for the reversal
of Roe v. Wade, the 1973 decision that legalized
abortion nationwide. But supposing that happens? The effect of overturning Roe will be simply to return the abortion issue to the
states and let them deal with it.

This is highly desirable of course, but by no means does it mean
the end of abortion in America. Some states will place stringent restrictions on
the practice. Others will allow the present regime of abortion on demand to
remain in place. In any case, the realistic prospect will be a continuation of
this struggle in state legislatures for years to come — a great improvement
over the present situation but hardly the abolition of abortion.

That is the even more likely result if, as seems entirely
possible, the Supreme Court doesn’t flatly overturn Roe
v. Wade but instead adopts an incremental approach involving a green
light for state limits on the reasons and circumstances for the performance of
abortions. Again, a lot better than what we have now but not all that
pro-lifers might hope.

As for same-sex marriage, the reversal of the 2015 Obergefell ruling that gay couples have a
constitutional right to marry is similarly not in the cards. What can
realistically be expected is a stronger affirmation of the right to refuse to
cooperate with same-sex marriage than the Supreme Court delivered last term.

In that decision, Masterpiece Cakeshop v.
Colorado Civil Rights Commission, a baker who refused to bake a wedding
cake for a gay couple won, but largely because members of the civil rights body
crudely trashed his religious faith, thus advertising that he couldn’t get a
fair hearing there. If Kavanaugh joins the court, it’s reasonable to look for a
more robust defense of conscience rights in the future.

Note that the majority opinions in both Obergefell
and Masterpiece Cakeshop were written by Justice
Anthony Kennedy. Twenty-six years ago, at a time when many expected the
reversal of Roe v. Wade, Kennedy also had the
central role in a Supreme Court ruling upholding it. Kennedy is now retiring
from the court, with Kavanaugh taking his seat — when and if he’s confirmed.
The stakes in this confirmation fight could not be higher.

Shaw is a freelance writer from Washington and author of American Church: The
Remarkable Rise, Meteoric Fall, and Uncertain Future of Catholicism in America.